Kathryn Calanca v Christian Dior Pty Ltd

[2023] FWC 1635

[2023] FWC 1635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kathryn Calanca
v

Christian Dior Pty Ltd

(C2023/3469)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 7 JULY 2023

Application to deal with contraventions involving dismissal – s.587 – application dismissed.

1. On 15 June 2023, Ms Kathryn Calanca made an application under s.365 of the Fair Work Act 2009 (Cth) alleging she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was accompanied by a completed application for a waiver of the fee.

1. On 20 June 2023, a delegate for the President refused the application for a waiver of the fee. Ms Calanca was informed, by email to her nominated address, that the Commission was not satisfied that she would experience serious hardship if she was required to pay the fee, and that her application for waiver of the fee was refused. Ms Calanca was advised that if she did not make payment of the fee within 14 days her application might be dismissed. An SMS was also sent to Ms Calanca’s nominated telephone number requesting a call back regarding her unpaid application.

1. On 30 June 2023, Ms Calanca was advised via telephone that if she does not pay the application fee by 4 July 2023 her application may be dismissed. Ms Calanca advised the Commission that she was attempting to obtain legal advice and would respond by 4 July 2023.

1. To date Ms Calanca has not made further contact with the Commission and the application fee remains unpaid.

Legislative framework

1. In relation to an application made pursuant to s 365 of the Act, s 367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $77.80. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587 of the Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

…

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Consideration and conclusion

1. I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission.[1]

1. The absence of a response from Ms Calanca leaves me satisfied that it is appropriate in all the circumstances to dismiss the application.

1. 
   The application is dismissed. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR763957.

Printed by authority of the Commonwealth Government Printer

<PR763956>